Bekins Moving & Storage Co. of Florida, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1974

211 N.L.R.B. 138 (N.L.R.B. 1974)

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bekins Moving & Storage Co. of Florida, Inc. and
Freight Drivers, Warehousemen and Helpers,
Local Union No. 390 , an affiliate of international
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , Petitioner.
Case 12-RC-4352
June 7, 1974
DECISION AND DIRECTION OF
ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Anthony J.
DiSalvo of the National Labor Relations Board.
Subsequently, the record was reopened and a further
hearing was held before Hearing Officer David
Kayton of the National Labor Relations Board.
Following the close of the further hearing, the
Regional Director for Region 12 transferred this case
to the Board for decision. Thereafter, the Employer
and the Petitioner filed briefs.
The Board has reviewed the Hearing Officers'
rulings made at the hearings and finds that they are
free from prejudicial error. They are hereby af-
firmed.'
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein. The
parties stipulated that the Employer is a Florida
corporation having its principal place of business in
Miami, Florida , where it is engaged in the business of
moving and storing household goods and office
equipment . The parties also stipulated that the
Employer received annual gross revenues in excess of
$50,000 from the transportation of goods across the
borders of the State of Florida. While the Employer
refused to stipulate that it was engaged in interstate
commerce, it is clear from the record that the Board's
jurisdictional requirements have been satisfied.
2. The labor organization involved claims to
represent certain employees of the Employer. While
the Employer questioned the Petitioner 's status as a
labor organization and its ability to adequately
represent the employees in the unit sought, the
record discloses that the Petitioner admits employees
to membership and represents employees concerning
I This includes the ruling granting the Petitioner 's motion to quash the
Employer's subpoena duces tecum which, for the reasons discussed Infra, we
affirm.
s See Carter Manufacturing Company, 59 NLRB 804; American Mailing
Corporation, 197 NLRB 246; Washington Sheraton Corporation , 199 NLRB
728; N.L.R.B. v. Mansion House Center Management Corp., 473 F.2d 471
(C.A. 8, 1973).
3 "No person shall ... be deprived of life , liberty, or property , without
wages, hours, and working conditions. Accordingly,
it is clear that the Petitioner is a labor organization
within the meaning of Section 2(5) of the Act.
The Employer also argued that the Petitioner was
disqualified from seeking an election under Section
9(c) of the Act on the grounds that it engaged in
invidious discrimination on the basis of sex and also
against Spanish-speaking and Spanish-surnamed
individuals? The Employer placed such disqualifica-
tion in issue by means of a motion to dismiss and a
request for a subpoena duces tecum, made at the
hearing, and its posthearing brief and motion to
reopen the record to receive further evidence with
regard to said purported discrimination.
The issue of disqualification of a labor organiza-
tion on such grounds goes to the very heart of the
Board's interpretation and application of the Act.
We are charged with administering the National
Labor Relations Act and, in doing so, we strive to
expedite the holding of elections so that the wishes of
employees may be determined without undue delay.
However, the Employer argues that, as an agency of
the Federal Government, we are subject to constitu-
tional limitations on our administration of the Act,
notably the restraints on the exercise of our authority
imposed by the due process clause of the fifth
amendment .3 It also maintains that this Agency has a
duty to carry out our administration of this statute
with due regard to other aspects of Federal labor
policy as expressed in other statutory enactments
such as Title VII of the Civil Rights Act of 1964, as
amended in 1972. Thus, the issue presented, in light
of the foregoing comments, is whether the Board
may or should issue a certification to a labor
organization without considering an objection that
challenges the labor organization's capacity to fairly
represent unit employees. The Board will consider
the merits of such an objection prior to issuance of a
Board certification, but only after the election has
been held and then only if the labor organization
involved has won the election.
The due process clause of the fifth amendment is a
limitation upon the actions of the Federal Govern-
ment; it does not apply to private persons.4 It forbids
the participation in, and the actual practice of,
invidious discrimination by the Federal Govern-
ment.5 Were we, as an arm of the Federal Govern-
ment, to confer the benefits of a certification upon a
labor organization which is shown to be engaging in
due process of law ...."
4 Public Utilities Commission of the District of Columbia v. Pollak, 343
U.S. 451, 461-462 ( 1952).
5 Boiling v. Sharpe, 347 U.S. 497, 499-500 (1954); Steele v. Louisville &
Nashville Railroad Co., 323 U.S. 192 (1944); Wallace Corporation v.
N.L.RB., 323 U.S. 248 ( 1944); Tunstall v. Brotherhood of Locomotive
Fireme , 323 U .S. 210 (1944); Brotherhood of Railroad Trainmen v. Howar4
343 U.S. 768 ( 1952).
211 NLRB No. 7
BEKINS MOVING & STORAGE CO. 139
a pattern and practice of invidious discrimination,
the power of the Federal Government would surely
appear to be sanctioning, and indeed furthering, the
continued practice of such discrimination, thereby
running afoul of the due process clause of the fifth
amendment.6 Moreover, such action on our part
would clearly be anomalous in view of the Federal
Government's express policy against such discrimi-
nation and the many laws which prohibit it.7'
Accordingly, a precertification inquiry as to a labor
organization 's willingness and capacity to represent
employees on a fair and equal basis seems to us to be
both appropriate and constitutionally required if
such issues are raised by a timely motion.
Our colleagues argue that the Board lacks the
power to withhold a certificate from a union which
has won an election. They base this argument on the
mandatory terminology contained in the Act. The
difficulty with the argument is that the Supreme
Court has held repeatedly that neither the Federal
nor the state governments may take any action in
furtherance or support of, or assistance to, any forms
or practices of discrimination. Bolling v. Sharpe, 347
U.S. 497; Shelley v. Kraemer, 334 U.S. 1. The
Supreme Court has also held repeatedly that a
Federal statute authorizing the grant to a labor
organization of the right to bargain exclusively for
employees would run afoul of the Constitution unless
construed to impose upon such organization the duty
to represent and bargain equally and fairly for all
employees, and that Federal statutes conferring this
authority must , whatever their language purports to
require , be construed to impose on the union this
obligation of equal representation. Steele, Tunstall,
Wallace, and Howard, supra. Thus, the "mandatory"
language of the Act on which our colleagues rely
must also, we believe, be construed in harmony with
these same constitutional requirements. We do not
believe it is in harmony with those requirements for
this Board to take any action which would have the
clearly foreseeable effect of supporting or assisting a
union which can be shown to have engaged in
invidious discrimination.8 To construe the mandato-
ry language of the statute without reference to these
constitutional issues would cause the statute itself to
fall afoul of the constitutional limitations set out in
Steele and other cases cited above.
Thus what the Board lacks is not the statutory
6 Gautreaux v Romney, 448 F 2d 731, 737-738 (C A 7, 1971), Green v
Connally, 330 F Supp 1150, 1164-65,1169 (D C D C, 1971), affd 404 U S.
997 (1971 ), Simkins v Moses H Cone Memorial Hospital, 323 F 2d 959,
969-970 (C.A. 4, 1963), cert denied 376 U.S 938 ( 1964).
7 See Southern Steamship Co v N L R B, 316 U S 31, 47 (1942) Also see
Title VII of the Civil Rights Act of 1964, as amended 1972, 42 U.S.C. §
2000(e), et seq, Civil Rights Act of 1866 , 42 U S C § 1981; Equal Pay Act
of 1963 , 29 U S.C. § 206(d), Age Discrimination in Employment Act of
power to withhold the certificate, but rather the
constitutional power to confer it.
We do not disagree substantially with the view that
we should not undertake the enforcement of statutes
which Congress has given to other agencies to
administer. While the Board must interpret the Act
with due regard for Federal policy against racial or
other arbitrary or invidious discrimination, we
should not attempt to usurp the functions which
Congress entrusted to the Equal Employment Oppor-
tunity Commission and other agencies . On the other
hand, it seems clear to us that this Board cannot
constitutionally certify a labor organization which is
shown, as Member Kennedy posits, to be engaging in
practices such as excluding persons from member-
ship on the basis of race, alienage, or national origin,
which, if encouraged by a certification, would put us
in the constitutionally indefensible position of
knowingly furthering those practices which are
prohibited by both constitutional and statutory
provision.
Nor can we constitutionally certify a union which
is shown to have a propensity to fail fairly to
represent employees. Our constitutional considera-
tions may, in this respect, be somewhat broader than
those expressed by Member Kennedy. For we
understand the duty of fair representation to be
rooted in the Constitution as well as the statute. As
the Court of Appeals for the Fifth Circuit said in
Local Union No. 12, United Rubber, Cork, Linoleum &
Plastic Workers of America, AFL-CIO v. N.L.R.B.,
368 F.2d 12, 17:
Indeed, the Supreme Court had indicated that
any statute purporting to bestow upon a union
the exclusive right to represent all employees
would be unconstitutional if it failed to impose
upon the union this reciprocal duty of fair
representation.
It will thus be our task, on a case-by-case basis, to
determine whether the nature and quantum of the
proof offered sufficiently shows a propensity for
unfair representation as to require us, in order that
our own action may conform to our constitutional
duties, to take the drastic step of declining to certify
a labor organization which has demonstrated in an
election that it is the choice of the majority of
employees. It is not our intention to take such a step
lightly or incautiously, nor to regard every possible
1967, 29 U S C § 623, et seq, Executive Order 11141, 29 F R 2477 (1964),
Executive Order 11246, 30 F R 12319 (1965), as amended by Executive
Order 11375, 22 F.R. 14303 (1967); Executive Order 11478, 34 F R 12985
(1969); § 19(b)(5) of Executive Order 11491, 34 F R 17905 (1969)
8 We do not at this time , in this opinion , purport to decide what degree
or form of invidious discrimination would be sufficient to warrant
disqualification of a union from receiving or retaining certification
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged violation of Title VII, for example, as
grounds for refusing to issue a certificate. There will
doubtless be cases in which we will conclude that
correction of such statutory violations is best left to
the expertise of other agencies or to remedial orders
less draconian than the total withholding of repre-
sentative status. To reconcile these views with a full
awareness of our own constitutional responsibilities
will, we recognize , not always be an easy task, but the
difficulties involved do not entitle us to shrug off our
oath to uphold and defend the Constitution of the
United States.
Our colleagues' argument that the discriminating
union should be given the opportunity to bargain
and to show thereby that it has "reformed," or that
its new members in the new unit should be given the
chance to "reform" it does not offer sufficient
assurance that, in the event of the issuance of a
certificate to a union as yet clearly unreformed, such
a union would exercise the powers given to it in a
manner consonant with its duty of fair representa-
tion. For this reform or demonstration can come
about only through the union's actions in represent-
ing the employees; and in the view of our Act, a
Federal instrumentality, conferring exclusive repre-
sentation rights upon a union whose history is one of
invidious discrimination among its membership is
itself unlawful. To grant such a union certification as
exclusive bargaining representative would grant it an
opportunity for further unlawful invidious discrimi-
nation. To decline to lend governmental, sponsorship
and approval to it is not to "eliminate the institution
of collective bargaining" or to "throw out the baby
with the bath," but is only to recognize our
obligation to construe our statute in light of the
Constitution and thus to grant the power of exclusive
representation only to a labor organization which has
not shown open disregard for its duty to represent all
employees without invidious discrimination. The
union and its members have it within their own
power to meet this obligation by eliminating the
discrimination, if it has occurred in the past,
before-not after-coming to this Agency to seek a
federally conferred certificate.
In urging a policy of immediate certification, our
colleagues argue that numerous beneficial effects will
result from such a practice or policy. The simple
answer to such arguments is one we have already
made; namely, that as an agency of the Federal
9 Supra.
10 Supra.
11 The same may be said for the argument that the granting of
certification would give bargaining unit members rights enforceable under
our Act and the Civil Rights Act of 1964. Employees have these rights by
virtue of the legislation creating them, but, of course , employees are not
likely to seek legal redress until such time as they feel that their rights are
being impinged upon . To provide the opportunity for impingement hardly
Government, we are constitutionally prohibited from
using our power or authority to support, sustain, or
assist any person or organization shown to us to have
engaged in invidious discrimination. Thus, we regard
as beside the mark any curative effects which might
flow from certification of a discriminatory union.
However, to guard against any inference that we
tacitly accept these arguments, we shall examine
them briefly.
Our colleagues state that the granting of a
certification will impose upon the Petitioner the
responsibility to act in a nondiscriminatory manner
toward the bargaining unit employees. That responsi-
bility has, however, already been placed on labor
organizations by a long series of court decisions
beginning with Steele9 and by Title VII of the Civil
Rights Act of 1964.10 Of course, it can be said that
the Petitioner lacks the capacity to discriminate
against those it does not represent and, in this sense,
a certification imposes additional responsibility. But
it seems to us to be somewhat anomalous to provide
the discriminator with a further opportunity to
discriminate in order that we may better hold him
accountable for his actions, a bit like inviting the fox
into the chicken coop to have a better opportunity to
watch him.11 Our colleagues apparently assume that
the prohibition against discrimination does not reach
a union until it is certified. Steele teaches us to the
contrary, that it is the union's power to bargain for
all by virtue of the statute which brings the
prohibition into effect, and the duty of fair represent-
ation has never been limited to certified unions.
Our colleagues also argue that minority groups
within the bargaining unit would benefit from the
issuance of a certification because these minorities
would be then in a position to act constructively
towards the elimination of the labor organization's
discriminatory policies. But is this not a rather
strained expectation? If resort to self-help would
have been likely to have eliminated discrimination,
there would have been no necessity for the enact-
ment of the Civil Rights Act of 1964. Further, the
fact that the discriminating union was assisted by a
Federal agency to become the representative of the
employees could only deter the employees from
looking to the Federal Government for aid against
the discrimination.12
Our colleagues also propose a policy of revoking
certifications where necessary in preference to
qualifies as a beneficial reason for issuing a certification.
12 Our colleagues speculate that minority employees might in some
circumstances vote for representation by a union which discriminates in
order to be in a position to effect reforms in the policies of that
organization. We think it unrealistic to assume that lifelong victims of
discrimination would value so highly the representative abilities of such an
organization that they would be willing to subject themselves, even
temporarily, to further discrimination.
BEKINS MOVING & STORAGE CO. 141
determining that the certification be withheld until
the question of discrimination is resolved. Again
aside from the constitutional barriers which appear
to us to be insurmountable, we fail to see any
practical advantage in applying a revocation ap-
proach to the problem. To us, this merely delays a
determination of an inevitable issue and so long as
such a cloud remains over the union's status as
lawful bargaining representative, true and meaning-
ful good-faith bargaining would be difficult to
achieve or expect. It would seem to us that it is both
desirable and necessary that the union's representa-
tive status be clarified as expeditiously as possible, a
result which we believe is achieved through the
implementation of our policy.
Accordingly, a precertification inquiry, in our
opinion, need not be made at the original hearing,
but may be made after an election has been held and,
at that time , only if the labor organization involved
has received a majority of the valid votes cast and is
thus, absent any showing of grounds for disqualifica-
tion, prima facie eligible for certification by this
Board as the exclusive agent of all employees in the
unit . The Board has limited resources and an ever-
increasing caseload. We attempt to give employees
an opportunity to express their representational
wishes through a secret ballot election with as little
delay as possible. If we were to hold that the inquiry
concerning the issue of disqualification was to be
made at the original hearing before an election was
held, we would be allocating our limited resources
and time to determine an issue not yet ripe for
consideration,13 we would significantly delay the
holding of elections,14 and we would thus fail to
effectuate the purposes and policies of the Act.
Furthermore,' under Section 9(c)(1) of the Act, we
would be deprived of the often necessary and
meaningful recommendations of a Hearing Officer if
the inquiry were made in the preelection hearing,
since that hearing is only a factfinding, a nonadver-
sary one.15 Unlike the original preelection hearing, a
postelection hearing can, in an appropriate case,
culminate in the issuance of a report and recommen-
dations by a Hearing Officer, and affords the parties
an opportunity to file exceptions and briefs. Limiting
the litigation of the disqualification issue to the
postelection hearing would thus give us the benefit of
credibility resolutions , where needed, and recom-
13 We regard the issue ripe for consideration only if the labor
organization involved has won the election since only at that time does the
issue arise as to whether the Federal Government may or should confer
upon the organization the benefits of a certification.
14 At present , in the majority of cases, an election is held within
approximately 40 days after the petition is filed.
1s Secs. 101.20(c) and 101 .21(b), Rules and Regulations and Statements
of Procedure, Series 8, as amended ; Monticello Charm Tred Mills,
Incorporated 80 NLRB 378, fn. 2.
mendations; and, at the same time, the litigants'
rights to procedural due process would be fully
protected.
We have considered whether we ought to attempt
to define through rulemaking both the procedural
and substantive parameters of our future considera-
tion of issues such as those sought to be raised in this
proceeding. After much deliberation, we have con-
cluded that we are not yet sufficiently experienced in
this newly developing area of the law to enable us to
codify, at this time, our approach to such issues,
either procedurally or substantively. We also believe
that the parties are entitled to judicial review of our
determinations as to the proper scope of our duty
and authority to conform our own law and proce-
dures to the requirements of both the Constitution
and legislation against invidious discrimination in
employment. Courts of appeals have, in recent times,
differed with our approach to these matters,16 and
the Supreme Court has, as yet, had little opportunity
to clarify what our role in this area can or should be.
This decisional route will fully preserve, through the
statutorily prescribed procedures, the rights of the
parties to seek judicial review at an appropriate time.
As to procedure, while we believe, for the reasons
above indicated, that the postelection objection route
will safeguard our procedures against undue delay
and still provide the parties with a fair opportunity to
litigate such issues , only some period of experience
will demonstrate whether the route we have deter-
mined to utilize will prove practicable for us and
equitable to all concerned, Hence, we have opted for
the decisional route at this time, being of the view
that it is particularly important in this new area to
heed the warning of the Supreme Court that there are
times where engaging in rulemaking could "make the
administrative process inflexible and incapable of
dealing with many of the specialized problems which
arise. . . ." 17
In sum, then, we hold that we will not consider the
present objections to Petitioner's capacity to fairly
represent employees at this time. We will consider
them after the election has been held, and then only
if the Petitioner wins the election, but before
certification issues , if properly substantiated objec-
tions to the issuance of a certification are filed based
on the grounds we have discussed herein.18 We hold
that the Employer in this case may raise the issue of
16 N.L. R.B. v. Mansion House Center Management Corp., 473 F.2d 471
(C.A. 8, 1973); The Emporium and Western Addition Community Organiza-
tion, 192 NLRB 173 (Member Jenkins dissenting), reversed 485 F.2d 917
(C.A.D C, 1973). We are currently seeking certiorari in the Emporium case.
17 Securities & Exchange Commission v. Chenery Corporation, 332 U.S
194.
18 It is for this reason that we hereby deny the Employer 's motion to
dismiss and to reopen the record to receive further evidence.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such disqualification of the Petitioner by an objec-
tion to the issuance of the certificate filed with the
Regional Director within 5 days of the issuance of
the tally of ballots for any election which may be
conducted herein, which will be considered only if
the Petitioner ultimately receives a majority of the
valid votes cast. Said objection, if timely filed and
properly served on all parties, shall be processed in
the same manner as -any other objection filed in
accordance with the provisions of Section 102.69 of
the Board's Rules and Regulations, Series 8, as
amended.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The Petitioner seeks to represent a unit
consisting of all drivers, warehousemen, mechanics,
and helpers employed at the Employer's Miami,
Florida, facility.19 At the Employer's Miami facility,
there are approximately 24 drivers, 22 to 26 full-time
helpers, 10 to 15 part-time warehousemen and
helpers, 1 storage clerk, and 1 claims clerk.
The Employer contends that the unit sought by the
Petitioner is inappropriate on several grounds. The
Employer contends that one of two other units would
be appropriate: one unit would be the entire
Southeastern Region of the Employer, which con-
tains seven district offices; 20 the other unit would be
that consisting of three district offices: Miami, Boca
Raton, and Fort Lauderdale, Florida. The Employer
further contends that the unit sought by the
Petitioner is inappropriate because all of the drivers
the Petitioner would include are supervisors within
the meaning of Section 2(11) of the Act. Finally, the
Employer contends that the unit sought by the
Petitioner is too narrow in scope since it fails to
include a storage clerk, a claims clerk, and regular
part-time employees employed by the Employer at its
Miami, Florida, facility.
With respect to the appropriate unit, the Employer
grounds its arguments in support of a unit encom-
passing three district offices and an alternate unit
encompassing all of the district offices of the
Southeastern Region on the factors of common
supervision, contact among employees of the various
offices, equipment exchanges, a centralized vehicle
repair facility, and common lines of communication.
However, the record shows that the district offices
19 The facility involved houses the Employer's Southeastern Region
headquarters , its Miami district office , and one warehouse.
20 Miami, Boca Raton , Fort Lauderdale, Tampa, Clearwater, and
Jacksonville, Florida, and Atlanta, Georgia.
21 Groendyke Transport, Inc., 171 NLRB 997; Wayland Distributing
Company, Inc., 204 NLRB No. 72.
22 The Employer would exclude one regular driver on the grounds that
he is a "driver trainer," i . e., a driver who trains prospective drivers, rates
are effectively antonomous with regard to scheduling
the work of their employees, hiring, firing, and
supervising the daily performance of their employees,
and determining layoffs. Moreover, there is virtually
no temporary interchange between employees from
the Miami district office and the other district offices
within the Employer's Southeastern Region. Further-
more, the district offices are not geographically
contiguous. In addition, there is no prior history of
bargaining on a multidistrict office or regional basis.
Finally, no labor organization seeks to represent
these employees on any other basis. Under these
circumstances, we find that the single-district office
unit requested by the Petitioner is appropriate.21
With respect to the supervisory status of the
drivers, the Petitioner states that they are not
supervisors, and should be included in the unit. The
Employer, on the other hand, states that the
truckdrivers are supervisors, and should therefore be
excluded from the unit sought.22 The record shows
that there are approximately 24 truckdrivers. Of
these 24 truckdrivers, approximately 4 drivers regu-
larly serve as "radial drivers," i.e., drivers who travel
further than 50 miles from the Employer's Miami
facility. With regard to those drivers who function
within a 50-mile radius of the Employer's Miami
facility, the record shows that they have no authority
to hire or fire helpers or effectively recommend such
action; the dispatcher determines the driver's route
and the type of truck the driver will use; the driver
has no power to transfer a helper from one driver to
another, or select a particular helper; each driver
punches the same timeclock as that used by the
helpers, and they both wear the same uniforms; and
the drivers work with the helpers in loading and
unloading the Employer's trucks. The record, viewed
as a whole, establishes that the work performed by
the regular drivers is routine, and does not involve
the exercise of any supervisory authority. However,
the "radial" drivers do exercise certain indicia of
supervisory authority as set forth in Section 2(11) of
the Act. The record shows that the "radial" drivers,
unlike the regular drivers, have the authority to hire
temporary help at their destination, set rates of pay
for such help, and terminate or lay off such help at
their discretion. Accordingly, we find that the regular
drivers are employees who share a community of
interest with the remaining employees in the unit
sought, and should therefore be included in that unit.
their performance as drivers , and effectively determines if they will serve as
drivers . The Employer states that this individual also rates its drivers at a
given location on a quarterly basis . We find no record support for the
contention that this individual is a supervisor within the meaning of Sec.
2(11) of the Act . The witness who served in this capacity at the Miami
facility credibly stated that he merely showed other drivers how to fill out
various forms.
BEKINS MOVING & STORAGE CO 143
However, we find that the four "radial" drivers are
supervisors within the meaning of the Act and
therefore we shall exclude them from the unit.
The Petitioner took no position with regard to the
storage clerk, the claims clerk, or the part-time
warehousemen and helpers. The Employer states that
the storage clerk should be included in the unit
because he has frequent contact with the warehouse-
men, his office is located next to the warehouse, he
has occasion to move inventoried articles about in
the warehouse, and he is paid hourly as are the
warehousemen. The Employer also states that the
claims clerk, who is in charge of processing customer
claims for damage to goods moved by the Employer,
should be included in the unit since this clerk has
frequent contact with the drivers and warehouse
employees in the course of processing customer
claims. Finally, the Employer states that the regular
part-time employees who work from 10 to approxi-
mately 35 hours each week on a regular basis should
be included in the unit.
The record shows that the storage clerk is situated
in an office adjacent to the warehouse, maintains
records as to the nature and location of items stored
in the warehouse, has frequent contact with the
warehousemen, and occasionally moves items situat-
ed in the warehouse. The record also shows that the
claims clerk spends the bulk of her time in processing
customer claims for damages to goods and maintain-
ing an inventory of customer overages, and that she
has infrequent contact with the warehousemen. In
view of the foregoing facts, we find that the storage
clerk should be included in, and the claims clerk
excluded from, the unit sought. As for the regular
part-time helpers and warehousemen, we shall
include them in the unit since they perform the same
work under the same conditions as their full-time
counterparts.
Accordingly, we find that the following unit is
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All drivers, warehousemen, mechanics, storage
clerks, and regular part-time helpers and ware-
housemen employed by the Employer at its
Miami, Florida, facility, excluding the claims
clerks, all office clerical employees, managerial
employees, confidential employees, radial drivers,
guards and supervisors as defined in the Act.
[Direction of Election and Excelsior footnote 23
omitted from publication.]
MEMBER KENNEDY, concurring:
I agree with Chairman Miller and Member Jenkins
to the extent that we are constitutionally foreclosed
from issuing a certification to a labor organization
which discriminates on the basis of race , 24 alienage,25
or national origin .26 Since I am not in complete
agreement with them as to the constitutional princi-
ples involved , I have elected to set forth my views in
a separate opinion.
Whenever issues pertaining to discriminatory
practices of labor organizations are raised before this
Board, we must cope with two Federal policies which
are, to some extent , inconsistent . On the one hand,
we were created by Congress for the primary purpose
of implementing the policies of the National Labor
Relations Act. One of those stated policies is to
protect for workers their "full freedom of association,
self-organization , and designation of representatives
of their own choosing...." 27 In implementing this
policy, we have established election procedures
designed to expeditiously certify as exclusive bar-
gaining representatives those labor organizations
selected by the employees to represent them.
On the other hand , we are also an instrumentality
of the Federal Government , and as such are
precluded by the Constitution from directly or
indirectly sanctioning the private exercise of discrim-
ination . Bolling v. Sharpe, 347 U.S. 497 , 499-500
(1954). In my view , the issuance of a certification to a
labor organization which excludes persons from
membership on the basis of race , alienage, or
national origin would constitute such an impermissi-
ble sanction . It follows, therefore , that if this Board is
going to continue to perform its statutory responsi-
bilities under the Act efficiently, we must devise a
method of satisfying our constitutional responsibili-
ties in a manner which will least interfere with the
procedures by which the employees select a bargain-
ing representative.
In determining the proper role which the Board
should assume in this area , it is important to
recognize that through Title VII of the Civil Rights
Act of 1964, as amended in 1972, Congress has
entrusted considerable authority over discrimination
in employment to the Equal Employment Opportuni-
ty Commission . The more recent expansion of EEOC
jurisdiction to include pattern and practice suits
further evidences a congressional desire to channel
most employment discrimination suits to the EEOC.
Such an effort , it seems to me, is desirable from both
a legal and administrative standpoint . It would
promote uniformity in the development of the law in
terms of policies , procedures , and goals, while at the
same time promoting the most economic use of
24 See Loving v. Virginia, 388 U S 1, 11 (1967), McLaughlin v Florida, Richardson, 403 US 365, 372 (1971)
379 U.S 184, 191 -192 (1964) 26 Oyama v . California, 332 U.S. 633,644-646 (1948)
25 See Graham Commissioner, Department of Public Welfare of Arizona v 27 National Labor Relations Act, § 1, 29 U.S.C. § 151.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
governmental resources. Equally important, it would
avoid subjecting charged parties to a multiplicity of
simultaneous or successive lawsuits. In view of these
considerations , when allegations of discrimination by
a labor organization are raised in a representation
proceeding before this Board, I would restrict the
scope of the Board's inquiry to those matters which
we are constitutionally required to entertain. For
should we ignore the existence of such agencies as
the EEOC and fully embrace all aspects of employ-
ment discrimination , it will be impossible for us to
devote adequate attention to those Federal policies
which we were created to implement.
Assuming, as I do, that the Board is required by the
Constitution to examine in a representation proceed-
ing allegations that a labor organization discrimi-
nates on the basis of race, alienage, or national
origin , two questions arise : (1) at what stage of our
representation procedures should the allegations be
examined, and (2) what should be the scope of our
inquiry. With regard to the first question, I agree
with Chairman Miller and Member Jenkins that the
allegations must be examined prior to certification. I
agree further with their conclusion that procedural
delays can be minimized by deferring our inquiry
until after an election has been held and a labor
organization involved has won. I do not agree with
the dissent that our inquiry can be delayed until an
unfair labor practice proceeding is held under
Section 10 of the Act. In Natter Manufacturing
Corporation, Case 21-RC-13198, this Board unani-
mously authorized the procedure that the majority is
adopting in this case . There the Board denied an
employer's attempt to litigate a union's alleged
discriminatory practices in the preelection hearing.
The Board's denial was "without prejudice to the
Employer's right to raise the issue of disqualification
of the Petitioner by motion filed with the Regional
Director within five days of the issuance of the tally
of ballots for any election which may be conducted
herein ." 28 I would adhere to this procedure until
such time as we obtain a definitive ruling from the
Supreme Court on this important issue.
With regard to the second question-the scope of
the Board's inquiry-I have already indicated that it
should be no broader than is constitutionally
required. I believe the Board must entertain allega-
28 The Board has issued similar rulings in a number of other cases
including Alden Press, 13-RC-13026; Gero Enterprises d/b/a Jones Miami
Beach Express, 12-RC-4302; Southern Service Co., 15-RC-5099; Holiday
/nn-Evansville, 25-RC-5544; Automation Supply & Engineering,
28-RC-2627; Reporter Publishing, 20-RC-11441.
29 In view of the Supreme Court's recent decision in Kahn v . Shevin,
Attorney General of Florida, et at, No. 73-78, April 24, 1974, where sex was
not found to be an inherently suspect classification requiring strict judicial
scrutiny , and since the 27th amendment to the Constitution has yet to be
adopted , I do not regard precertification allegations based on sex
discrimination as a constitutional issue . However, it is my belief that
tions that a labor organization excludes persons from
membership on the basis of race, alienage, or
national origin.29 If upon a prima facie showing of
such an exclusion, the labor organization can
demonstrate that its recruitment or admission poli-
cies are nondiscriminatory then there appears to be
no constitutional impediment to its certification.
I would not undertake a precertification inquiry
with respect to a potential breach of a union's duty of
fair representation. Unlike my colleagues, I do not
consider the duty of fair representation to be a
constitutional obligation. Rather, I view it as an
obligation imposed by statute as a corollary to a
labor organization's being granted exclusive bargain-
ing representative status.
The U.S. Supreme Court first discussed the duty of
fair representation in Steele v. Louisville & Nashville
Railroad Co., et al., 323 U.S. 192 (1944). In that
decision, the Court clearly indicated that the origin
of the duty of fair representation was statutory rather
than constitutional.30 The Court noted that a
statutorily certified or recognized labor organization
was vested with exclusive authority to represent unit
employees. In view of this statutory grant of
exclusive authority, the Court determined, there
arose a corresponding duty to fairly and impartially
represent each employee in the unit. In the words of
the Court:
The fair interpretation of the statutory language is
that the organization chosen to represent a craft is
to represent all its members, the majority as well
as the minority, and it is to act for and not against
those whom it represents. It is a principle of
general application that the exercise of a granted
power to act in behalf of others involves the
assumption toward them of a duty to exercise the
power in their interest and behalf, and that such a
grant of power will not be deemed to dispense
with all duty toward those for whom it is
exercised unless so expressed. [323 U.S. at 202.]
As with the Railway Labor Act, labor organiza-
tions recognized or certified under Section 9(a) of the
National Labor Relations Act become the exclusive
representative of unit employees. Accordingly, they
thereby incur a statutory obligation to fairly repre-
sent those employees.
allegations of discrimination based on sex may be raised as a breach of the
duty to fairly represent after a certification has issued.
30 Indeed, it was the majority finding that the duty was statutory rather
than constitutional in nature which prompted Justice Murphy to write a
concurring opinion.
Although the statute involved in Steele was the Railway Labor Act, the
Court specifically noted the similarity between the relevant provisions there-
in, and the corresponding provisions of the National Labor Relations Act.
323 U .S 200 . In The Wallace Corporation, v. N.L.R.B., 323 U .S. 248 ,1255-256
(1944), decided on the same day as Steele, the Steele analysis regarding the
duty of fair representation was applied to the National Labor Relations Act.
BEKINS MOVING & STORAGE CO. 145
It is also significant that the Supreme Court has
continually described the duty to fairly represent
employees as the "statutory duty of fair representa-
tion."31
In Ford Motor Company v. Huffman, 345 U.S. 330,
337 (1953), the Court stated:
That the authority of bargaining representatives,
however, is not absolute is recognized in Steele v.
Louisville & N.R. Co., 323 U.S. 192, 198-199, in
connection with comparable provisions of the
Railway Labor Act. Their statutory obligation to
represent all members of an appropriate unit
requires them to make an honest effort to serve
the interests of all of those members, without
hostility to any. [Emphasis supplied.]
More recently, in Vaca v. Sipes, 386 U.S. 171, 177
(1967), the Court discussed this statutory duty of fair
representation:
It is now well established that, as the exclusive
bargaining representative of the employees in
Owens' bargaining unit, the Union had a statutory
duty fairly to represent all of those employees, both
in its collective bargaining with Swift, see Ford
Motor Co. v. Huffman, 345 U.S. 330; Syres v. Oil
Workers International Union, 350 U.S. 892, and in
its enforcement of the resulting collective bargain-
ing agreement , see Humphrey v. Moore, 375 U.S.
335. The statutory duty of fair representation was
developed over 20-years ago in a series of cases
involving alleged racial discrimination by unions
certified as exclusive bargaining representatives
under the Railway Labor Act, see Steele v.
Louisville & N. R. Co., 323 U.S. 192; Tunstall v.
Brotherhood of Locomotive Firemen, 323 U.S. 210,
and was soon extended to unions certified under
the N.L.R.A., see Ford Motor Co. v. Huffman,
supra. Under this doctrine, the exclusive agent's
statutory authority to represent all members of a
designated unit includes a statutory obligation to
serve the interests of all members without hostility
or discrimination toward any, to exercise its
discretion with complete good faith and honesty,
and to avoid arbitrary conduct. Humphrey v.
Moore, 375 U.S., at 342. [Emphasis supplied.]
In my view, allegations regarding a union's failure
to honor its duty of fair representation must, of
31 See also , Cox, The Duty of Fair Representation, 2 Vill. L. Rev. 151
(1957), where Archibald Cox stated:
Every union representing employees in businesses affecting com-
merce is, therefore, subject to a duty of fair representation, imposed by the
NLRA, without regard to whether the complaining employees have had
the union imposed upon them by force of the statute or have
designated it by voluntary membership . [Emphasis supplied]
32 42 U.S.C. 2000e, et seq.
necessity, relate to actions following certification.
Until a union has become the employees' exclusive
bargaining representative, it is not subject to a duty
to represent them fairly. Accordingly, I would defer
any examination of an alleged failure to fairly
represent until after a certification has issued. See
Hughes Tool Company, 147 NLRB 1573.
I believe the Constitution prohibits us from issuing
a certification to a labor organization which has
adopted a policy of excluding employees from
membership on the basis of race, alienage, or
national origin. Accordingly, I would limit the scope
of our precertification inquiry to determining the
presence or absence of such a policy.
I do not minimize the difficulties inherent in the
procedures which the majority is adopting, but I am
hopeful that we can discharge our constitutional
responsibilities without unduly disrupting our repre-
sentation procedures.
MEMBERS FANNING and PENELLO, dissenting:
The majority holds that the Employer may, at the
objections stage of this proceeding, file objections to
the certification of the Petitioner on the grounds that
the Petitioner discriminates in its membership poli-
cies and therefore, because it is likely to discriminate
in the representation of employees in the bargaining
unit on the basis of race, sex, or national origin, it
must be found incapable of, and disqualified from,
representing the employees. Such objections, the
majority holds, must be investigated and resolved if
the Petitioner receives a majority of the valid ballots
cast in a free and fair election and would, but for the
objection entered by the Employer, receive certifica-
tion as the exclusive representative of the employees
involved herein.
It is apparent that the majority does so because, in
its view, constitutional requirements, i.e., the due
process clause of the fifth amendment, certain
policies of the Act which they do not spell out, and
the Board's obligation to administer the Act in
harmony with other Federal statutory policies,
particularly the Civil Rights Act of 1964, as amend-
ed,32 preclude the Board from certifying a union
which the Board has reason to believe will not fairly
represent members of minority groups.
We dissent 33 We do so, even though we neither
approve nor condone discriminatory practices on the
part of unions, because we believe that withholding
33 Although we do not make any finding as to whether the Employer will
be able to prove that Petitioner practices invidious discrimination in its
representation and membership policies, we note that the Employer
apparently contends that Petitioner discriminates in its membership policies
on the basis of sex and national origin An affidavit of Petitioner 's president
discloses, however, that 12-1/2 percent of its members are Spanish-
surnamed individuals , 12-1/2 percent are women, and 25 percent are black
and its bylaws and constitution contain no provisions either permitting or
requiring such discrimination.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certification in the circumstances indicated is neither
required by the Constitution nor permitted by the
provisions of the Act.34 Moreover, we believe that
such action undercuts rather than strengthens the
Federal Government's administration of the Civil
Rights Act of 1964, as amended, to eliminate the very
discriminatory practices purportedly involved herein.
Turning first to the constitutional considerations
involved, it is important to note that certification of a
union as an exclusive representative not only gives
the union the statutory right to bargain for the
employees, it also imposes the obligation upon the
union fairly to represent all employees in the
bargaining unit, those opposed to the union as well
as those supporting it, members of minority groups
within the unit as well as those comprising the
majority, and to do so without invidious discrimina-
tion . This obligation is statutory and may be
constitutional as well.35 The issuance of a certifica-
tion of representative will impose upon Petitioner the
responsibility to act with respect to all members in
the bargaining unit in a manner which does not
violate their constitutional right not to "be deprived
of life, liberty, or property, without due process of
law,"36 a responsibility which may not attach to it in
its private capacity as a voluntary association of
individuals. Certification of the Petitioner as their
exclusive representative will give members of the
bargaining unit rights enforceable not only under the
Act, but under the Civil Rights Act as well, and in
lawsuits arising under the laws of the United
States.37
The rights which may be enforced by minority
members of the bargaining unit against their exclu-
sive representative include, of course, the right to be
represented fairly and without hostility or discrimi-
nation . Among those rights also is the right to
participate in the affairs of the exclusive representa-
tive, including the right to be admitted to member-
ship.38 These rights, it should hardly need be said,
attach to employees represented by any exclusive
representative, whether such status was obtained
34 We note that this issue , perhaps one of the most important ever to be
decided by the Board , has come to the Board on a motion of the Employer
only cursorily briefed by it, and as to which the Board has neither asked for
nor received statements of positions of the parties or other interested
persons and organizations.
35 Steele v. Louisville & Nashville Railroad Co., et al., 323 U.S. 92 (1944);
Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210
(1944); The Wallace Corporation v. N.L.R.B., 323 U.S. 248 (1944).
36 Betts v . Easley, 169 P.2d 831 (Kans . S.Ct., 1946). See also James v.
Marinship Corporation, 155 P.2d 329, 339 (Calif. S.Ct., 1944).
"It is true ... that unions which have been certified under § 9 of the
NLRA as collective bargaining agents must exercise their statutory power,
as federal instrumentalities , subject to the First and Fifth Amendments and
other relevant parts of the United States Constitution." Linscott v. Miller
Falls Company, 316 F.Supp. 1369, 1370 (D.C.Mass. (1970)), affd. 440 F.2d
14(C.A. 1, 1971).
31 See cases cited in fns . 35 and 36. See also Ford Motor Company v.
Huffman, 345 U.S. 330 (1953); Syres v. Oil Workers International Union,
through voluntary recognition or by means of a
Board certification. In these circumstances, we can
find no merit to the Employer's constitutional
argument in this case, an argument apparently
accepted by the majority, that certification of a
union which, to put the hard case, denies member-
ship to members of minority groups, because of the
color of their skin, their sex, or national origin, places
the Board in the position of aiding and abetting the
union's discriminatory policies. The conclusion
seems to us to be quite the other way around. By
certifying Petitioner if it wins a valid Board election,
the Board, other Federal agencies , and the minority
groups within the bargaining unit are placed in a
position where they can act constructively to elimi-
nate the discriminatory policies which the majority's
contemplated action would leave wholly untouched,
except in the unlikely event the Employer voluntarily
recognizes the Union whose certification it is so
vigorously opposing.
We are at a loss to understand our colleagues'
denigration of the substantiality of these rights and
the opportunities afforded employees to invoke
governmental assistance in eliminating evils flowing
from racial and other invidious discriminatory
practices on the part of unions. This Board has
recently found that an exclusive representative
violated Section 8(b)(1)(A) by segregating its mem-
bers into separate locals, one for male members and
one for female members, and by restricting the
processing of grievances to the local in which the
employee was eligible for membership.39 We held
that segregation of membership on the basis of sex
effectively denied employees a voice in the resolution
of matters affecting working conditions. This denial
of the right of full participation in the affairs of the
representative was found to restrain and coerce
employees in the exercise of Section 7 rights.
Obviously, though the case involved segregated
locals affording some form of membership participa-
tion, it applies to total exclusion from membership
on such grounds.
Local No. 23, 350 U.S. 892 (1955); Humphrey v. Moore, 375 U.S. 335 (1964);
Vaca v. Sipes, 386 U.S. 171 (1967).
38 Betts v . Easley, supra; see also James v. Marinship Corporation, supra.
See also the Civil Rights Act of 1964, as amended . It is not at all
inconceivable that members of a minority group might vote for representa-
tion by a union which discriminates in its membership policies with respect
to members of that group as a first and necessary step in reforming the
practices of that union so as to obtain representation by a strong and
effective union . In any event , we have no petition by members of the
minority groups, whose constitutional rights are allegedly endangered,
seeking to have the Petitioner disqualified ; we have here , as we will have in
all the cases our colleagues invite , only the request of an employer seeking
to invoke whatever means are handy to avoid having to deal with its
employees collectively rather than individually.
39 Local No. 106, Glass Bottle Blowers Association , AFL-CIO (Owens-
Illinois, Inc.), 210 NLRB No. 131 (Member Penello concurring specially and
Member Kennedy dissenting in part).
BEKINS MOVING & STORAGE CO. 147
One may, we suppose, have differing views about
the reasonableness of that construction of the statute,
and, indeed, two members of the Board disagreed
with the finding that the maintenance of segregated
locals on the basis of sex by itself violated the Act.
However, if that decision is as sound in law as in
policy, it demonstrates that the Act affords suitable
machinery, economically and administratively avail-
able to employees who are victims of the discrimina-
tory practices which all of us abhor, to eliminate
discriminatory membership policies of unions claim-
ing the status of exclusive representative under the
Act. For a charge filed against such representative,
whether newly certified or not, will bring the whole
machinery of this Agency to bear on establishing the
existence of the invidious discrimination and in
devising effective affirmative remedial action to
eliminate the offending practices. It will do so,
moreover, at the behest of the victims of the
discrimination whose rights have been infringed
upon and who are seeking to exercise those rights,
not upon the behest of some employer seeking to
delay or avoid the day he must deal with his
employees collectively rather than individually. In a
very real sense , therefore, the certification of a union
as an exclusive representative operates to create the
necessary condition for permitting the sanction of
law and government to run against the offending
practices.
The fact that this process is normally invoked by
an individual filing charges with the Board is no
reason to minimize its effectiveness from an adminis-
trative or constitutional standpoint. Both Congress
and courts have recognized the paramount impor-
tance of individual action in this area of the law by
authorizing and encouraging individuals to initiate
and maintain actions involving discriminatory union
membership and representational policies, both in
Title VII cases and in fair representation cases.40
In short, we reject the argument that Board action
40 As the Supreme Court noted in Alexander v Gardner-Denver Co, 415
U.S 36, (1974) "In addition to reposing ultimate authority in federal
courts, Congress gave private individuals a significant role in the
enforcement process of Title VII Individual grievants usually initiate the
Commission's investigatory and conciliatory procedures And although the
1972 amendment to Title VII empowers the Commission to bring its own
actions, the private right of action remains an essential means of obtaining
judicial enforcement of Title VII 42 U S C § 2000e-5(f)(1) In such cases,
the private litigant not only redresses his own injury but also vindicates the
important congressional policy against discriminatory practices " In Vaca v
Sipes, supra, the Supreme Court held that the fact that a union's breach of
the duty of fair representation may be an unfair labor practice under Sec
8(b) of the Act does not preclude employees from maintaining court actions
and courts from devising appropriate remedies to eliminate the discrimina-
tory practices The right of individual action and the existence of a
multiplicity of forums available to the individual for vindication of his
constitutional rights not only gives greater opportunities for actions that can
be tailored to elimination of the offending practices without sacrificing the
benefits accruing to the individual and the public from the establishment
and preservation of the collective -bargaining relationship, it demonstrates
beyond reasonable doubt that the certification of a labor organization as an
which will operate to clothe Petitioner with a
statutory (and possibly constitutional) responsibility,
vis-a-vis the employees it represents, somehow and in
someway contravenes the due process clause of the
fifth amendment.
Turning next to a consideration of the policies of
the Act, we believe the withholding of a certification
from a union which has won a fairly conducted valid
election is beyond the power of the Board. It is now
well established that, in establishing the representa-
tion case procedures, Congress intentionally denied
the right of court review of such proceedings, except
where an unfair labor practice order is dependent
upon facts certified as a result of a proceeding
conducted under Section 9(c).41 The evident purpose
behind this decision was to provide for the speedy
resolution of questions concerning representation
and the selection of bargaining representatives. To
that end Congress in Section 9(c)(1) directed that
"[w]henever a petition has been filed, in accordance
with such regulations as may be prescribed by the
Board . . . the Board shall investigate such petition
and if it has reasonable cause to believe that a
question concerning representation affecting com-
merce exists shall provide for an appropriate hear-
ing. . . . If the Board finds upon the record of such
hearing that such a question of representation exists,
it shall direct an election by secret ballot and shall
certify the results thereof." (Emphasis supplied.) This
language is language of requirement. Absent unfair-
ness in the election itself, the section commands the
Board to issue a certification of representative to the
winning labor organization.42 Our colleagues appar-
ently are willing to follow the statutory command
insofar as directing and conducting the election is
concerned, but they balk at honoring the mandate of
the employees and certifying the Petitioner should it
win but then be found to be "disqualified."43
But the language "shall certify" is as mandatory as
"shall investigate" and "shall direct an election,"
exclusive representative of employees rather than sanctioning the offending
practices imposes upon the labor organization the duty of refraining from
engaging in such practices.
41 See Secs 9(d) and 10(e) and (f) A F of L v. N L R B, 308 U S 401
(1940)
42 Miami Newspaper Printing Pressmen 's Union Local 46 v McCulloch,
322 F.2d 993 (1963).
43 Our colleagues find that the Petitioner is a labor organization within
the meaning of the Act notwithstanding it may be deemed to be
"disqualified" from receiving certification , as indeed they must. If it were
found not to be a "labor organization" the provisions of Sec 8(b) could not
be applied to it . Nor do our colleagues rule that the Petitioner 's possible
disqualification , if proven, justifies a refusal to place it on the ballot,
although that would seem to be a normal and logical means of handling the
issue . Of course, Sec 9(c)(2) requires some disqualification flowing from an
order issued in accordance with the provisions of Sec 10(c). Our colleagues
also find that Petitioner 's petition presents a question concerning represent-
ation without regard to whether Petitioner engages in invidious discrimina-
tion so as to "disqualify" it from receiving certification , for they direct an
election. They can hardly deny the validity of the election if Petitioner wins
but does not receive certification , for else the Petitioner could picket the
(Continued)
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, if the Petitioner wins this election, the Board is
required to certify it as the exclusive representative of
the employees in the appropriate unit. Nor is there
any reason why this should not be so. To do
otherwise is to deny employees the right guaranteed
them by Section 7 of the Act to bargain collectively
through representatives of their own choosing. Any
defects in the certification which may flow from the
Petitioner's allegedly discriminatory membership
policies are subject to review in proceedings which
may arise under Section 10 of the Act.44 Delaying
review of the certification until such time is wholly
consonant with the statutory scheme and with due
process.45 In addition, should the Petitioner be
recognized by the Employer pursuant to the certifica-
tion, and should it then fail fairly to represent the
employees, the certification would itself be subject to
revocation upon proof of such dereliction rather than
being withheld upon a mere presumption that the
Petitioner will fail to discharge its obligations.46 Nor
are employers required to submit to a certified
union's demands that they institute or agree to
discriminatory employment conditions. Indeed, just
as employers can be compelled to bargain about the
elimination of existing discriminatory customs and
practices,47 we take it they would not violate Section
8(a)(5) of the Act in refusing to bargain over union
demands that they continue or institute discriminato-
ry practices.48 Of course, it must be recognized that
employers may not be quick to perceive advantage to
themselves in resisting such demands, but the point is
that, insofar as a union's discriminatory membership
and representational policies may affect interests and
rights of employers, they have the means to resist
their imposition upon them and to bring about their
elimination . Moreover, since employees can also file
charges with the Board, 49 as well as invoke other
laws to eliminate the offending practices and policies,
there is simply no justification for devising a
procedure by which employers opposed to dealing
with their employees collectively can delay and
forestall the establishment of the collective-bargain-
ing relationship. In short, consistent with the statuto-
ry scheme,50 we would deny the Employer 's motions
in their entirety and leave such questions as they may
raise , with respect to the Petitioner's willingness or
capacity fairly to represent all employees in the
bargaining unit, to be resolved in other proceedings
under the Act.
We recognize, of course, that "... The Board has
not been commissioned to effectuate the policies of
the . . . Act so single-mindedly that it may wholly
ignore other and equally important Congressional
objectives.51 Obviously, if Board certification of a
union which engages in discrimination on the basis
of race, sex, or national origin in its representation of
bargaining unit employees were to frustrate the
administration of the Civil Rights Act of 1964, as
Employer without violating Sec 8 (bx7XB) of the Act If, in such
circumstances , an 8(bx7)(C) charge were filed , the Petitioner could force an
expedited election by filing another petition , and our colleagues would be
back where they started . Needless to say, such an endless round of election,
refusal to certify , picketing , election , etc., does not comport with the
provisions of either Sec. 9(c) or Sec. 8 (b)(7). But if the election is a valid
election , if the Petitioner wins but is denied certification , the employees
whom our colleagues would protect from the evils of representation by a
union practicing discrimination (which , in any event, they have selected,
possibly even with the hope and expectation of reforming its practices) will
be denied the right to have another election for I year. It can be seen that
the majority cannot accomplish their purpose except at the expense of
distorting one or another of the provisions of Sec . 9 of the Act.
44 Unions cannot routinely seek review of decisions withholding
certifications . To obtain review they must institute an action in the district
courts and must persuade the court that the Board has acted in violation of
express statutory commands or prohibitions Leedom v Kyne, 358 U S 184
( 1958); Miami Newspaper Union Local 46 v. McCulloch, supra.
45 A.F. of L v. N.LR B., supra.
49 The majority treats the withholding of a certification as similar to the
revocation of a certification The two actions are completely different. The
power to revoke a certification stems from the Board 's power to police
certifications issued in consequence of statutory commands The existence
of the power serves to encourage the certified union to discharge its
statutory responsibilities, and thus serves to preserve and foster the
institution of collective bargaining . The certification can be revoked only
after proof that the certified union has in fact failed to discharge its
obligation fairly to represent all employees. Withholding of a certification,
on the other hand , can never rest on more than a presumption that the
union will not fairly represent the employees whom it seeks to represent, a
presumption based , moreover , on circumstances existing as of a time when
the union could not have violated a duty of fair representation as to those
employees because it had not yet been selected as their representative.
Contrast this with the treatment given to alleged employer discrimination
ion the basis of sex in Jubilee Manufacturing Company, 202 NLRB 272
(Member Fanning concurring specially and Member Jenkins dissenting)
There the complaint was dismissed by the majority because there was no
showing of any direct relationship between the alleged discrimination and
the Board 's "traditional and primary functions of fostering collective
bargaining, protecting employees ' right to act concertedly , and conducting
elections in which the employees have an opportunity to cast their ballots
for or against a union in an atmosphere conducive to the sober and
informed exercise of the franchise ." In concurring , Member Fanning stated
he would require a showing of actual discrimination among the employees
in the unit involved This is, we believe, the proper way to handle this issue.
47 Farmers' Cooperative Compress, 169 NLRB 290, enfd . 416 F.2d 1126
(C.A.D.C., 1969)
48 They could also file 8 (b)(3) charges against the union . Of course, such
action , though it would bring about the elimination of the union 's actions
seeking to involve the employers in the offending practices , would preserve
the collective-bargaining relationship.
49 Owens-Illinois, supra
50 Assuming, arguendo, that there is merit in our colleagues ' position that
the Board cannot issue a certification to a union that discriminates in its
membership and representational policies, we submit that the question of
the union 's qualification to act as a representative should be litigated before
the direction of election . Obviously , the union's qualification to receive
certification is a matter of importance to the employees in choosing between
competing labor organizations in a Board election and the Board's action in
holding the election will necessarily be perceived as a ruling that the Union
is qualified . Moreover, if the act of certification places the sanction of
government upon the offending discriminatory practices, so does making
governmental machinery available to the offending union. Indeed, a union
which wins such an election , but is denied certification , may nevertheless be
able because of the solidarity and strength thus demonstrated to force the
employer to recognize it without a certification These considerations and
those set forth in In . 43 of this opinion make it apparent that the issue
cannot be confined simply to those cases in which the offending union wins
the election.
Si Southern Steamship Company v. N.LR.B., 316 US 31, 47 (1942)
BEKINS MOVING & STORAGE CO. 149
amended, there might, even in the absence of
constitutional requirements, be room for such an
accomodation of the policies of the two statutes as
our colleagues attempt herein. But that is not the
case. That act makes it an "unlawful employment
practice" for a labor organization to exclude or expel
from its membership or to otherwise discriminate
against any individual, or to segregate or classify its
membership on the basis of race, color, sex, religion,
or national origin, or to cause or attempt to cause an
employer to discriminate against an employee.52 It
defines a labor organization as one "engaged in an
industry affecting commerce,"53 and provides that a
labor organization certified by the Board as an
exclusive bargaining representative, without more, is
such a labor organization.54 Obviously, certification
by the Board of a union which engages in practices
prohibited by the Civil Rights Act does not prevent
or in any way frustrate the effectuation of the
policies of that act. Indeed, inasmuch as Board
certification may, in some cases, be the sole criterion
which subjects the union to the provisions of that act,
withholding of certification may actually frustrate
administration of the Civil Rights Act. In any event,
it is plain that, in enacting the Civil Rights Act,
Congress sought to eliminate not only those unlawful
employment practices committed by employers and
unions acting individually, but also those resulting
from collective bargaining by employers and unions.
Congress did not, in reaching out against such
practices, seek to eliminate the institution of collec-
tive bargaining. Rather it made certain employment
practices unlawful, thus preserving and strengthening
the institution. Our colleagues would throw out the
baby with the bath. Just as the Board has been
admonished against single-minded administration of
the Act which ignores other and equally important
congressional objectives, it has been admonished
against enforcing policies given to others to adminis-
ter in the guise of enforcing the provisions of the
Act.55
52 42 U.S.C 2000e (2) 55 Local 1976, United Brotherhood of Carpenters and Joiners of America,
53 42 U S.C.2000e(d) AFL [Sand Door & Plywood Co) v N L R.B, 357 U S 93, 108-111 (1958)
54 42 U S C 2000e (e)(i)